Friday, December 07, 2007

Abuse of Executive Power Revealed

This morning in the Senate, Sheldon Whitehouse gave an extraordinary speech. In it, he detailed out his findings on previously secret Office of Legal Council (OLC) opinions, which the Administration goes to in order to support it's programs, in this case about FISA.
Here's a few things which "dismayed" him:
1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
3. The Department of Justice is bound by the President’s legal determinations.

Think Progress has the video. And emptywheel has some more.
Whitehouse, near the end of the piece, shoots entirely straight. In a nutshell, these three Bush administration legal propositions boil down to this:

1. “I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them.”

2. “I get to determine what my own powers are.”

3. “The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.”

When the Congress of the United States is willing to roll over for an unprincipled President, this is where you end up. We should not even be having this discussion. But here we are. I implore my colleagues: reject these feverish legal theories. I understand political loyalty, trust me, I do. But let us also be loyal to this great institution we serve in the legislative branch of our government. Let us also be loyal to the Constitution we took an oath to defend, from enemies foreign and domestic. And let us be loyal to the American people who live each day under our Constitution’s principles and protections.

Indeed, let them be loyal to the Constitution which they took an oath to defend.
UPDATE: The Courage Campaign is ratcheting up the pressure on DiFi to do the right thing about FISA too. H/T to Crooks and Liars who have the videos.

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